The Cape Town Convention and The Risk of Renationalization: A Comment in Reply to Jeffrey Wool and Andrej Jonovic

Abstract

This comment is in response to an article by Jeffrey Wool and Andrej Jonovic in which they explore the relationship between transnational commercial treaties and national law at the moment of implementation of those treaties within a State's domestic legal system. This comment argues that, in reality, national law poses the greatest danger to the predictability and uniformity intended by transnational commercial treaties at the later-occurring stages of interpretation and enforcement. The comment first considers how the framework developed by Wool and Jonovic for identifying the proper boundaries of national and transnational law does not account for the eventual shifting of those boundaries over time through the “renationalization” of supposedly transnationalized laws. The comment cites examples of that shift that are already taking place in certain States' enforcement of the Convention on International Interests in Mobile Equipment (The Cape Town Convention). It goes on to describe the circumstances under which courts further renationalize treaty law through a variety of interpretive choices they must inevitably confront. The comment then examines the two most commonly employed safeguards against renationalization and applies them to the Cape Town Convention. The first safeguard is autonomous interpretation, a doctrine which is in fact written into the Cape Town Convention. The comment summarizes some of the research on the doctrine's effectiveness in the enforcement of another transnational commercial treaty, the Convention on the International Sale of Goods, and contemplates what that history may presage for autonomous interpretation of Cape Town. Finally, the comment turns to the second commonly utilized safeguard against renationalization, investor-State dispute settlement, which pertains mostly to the State administration and enforcement of a treaty's provisions rather than their judicial or agency interpretation. Because these dispute settlement clauses have become increasingly controversial in recent years, the comment surveys the prospects for bringing Cape Town claims under the dispute resolution provisions of existing international investment treaties as an alternative to amending the Convention to include a freestanding investor-State dispute settlement mechanism.